Page No.# 1/5 GAHC010253822024 2025:GAU-AS:1486 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3908/2024 ABDUL BASIR BHUYAN S/O MALEK BHUYAN PERMANENT RESIDENT OF VILL- BORBALA P.S HAWLY DIST. BARPETA, ASSAM PIN NO. 781316 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. N K MURRY, P HAJONG,S DEB,MS S.DAS,MS P TOKBIPI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 13.02.2025 1. Heard Mr. N. K. Murry, learned counsel for the petitioner Abdul Basir Page No.# 2/5 Bhuyan. 2. The petitioner has filed this application under Section 483 of the BNSS, 2023 with prayer for bail as he is behind bars since 18.04.2023 in connection with Borpathar P.S. Case No. 21/2023 (corresponding to GR Case No. 157/2023) under Sections 21(C)/29 of the NDPS Act. 3. Heard Mr. B. Sharma, learned Additional Public Prosecutor, Assam for the respondent State. 4. It is submitted on behalf of the petitioner that the petitioner is behind bars for more than 22 months. 4 out of 9 witnesses have been examined up to 16.02.2024. Last year, only one witness was examined. Thus, the petitioner’s right to liberty has been curtailed due to the procrastination of this case by the Court. Unlike the submission of learned Additional Public Prosecutor, the petitioner has prayed for adjournment only on 30.01.2024. The evidence of PW- 3 exonerates the petitioner. Several contradictions arose through the cross- examination of PW-3. 5. On the contrary, learned Additional Public Prosecutor has raised serious objection stating that it is not because of the Court, trial has been procrastinated but procrastination of trial can be attributed to the petitioner also as the order dated 30.01.2024, passed by the learned Trial court clearly reflects that one witness was present but the learned counsel for the accused was absent and so the witness, Bhaskar Neog was sent back without his evidence being recorded. 6. It is submitted that 5 out of 9 witnesses have already been examined and this case cannot be considered to be a case where trial has been protracted to such an extent, that right to liberty of the petitioner has been infringed. The Page No.# 3/5 petitioner was found to be in conscious possession of the contraband. 7. I have considered the submissions at the Bar with circumspection. Earlier Abdul Basir Bhuyan’s prayer for bail was rejected on 16.02.2024. Now, the petitioner has filed this bail petition on change of circumstances as the case is progressing at a snail’s pace and only one witness has been examined after the petitioner’s prayer was rejected vide order dated 16.02.2024 in connection with B.A. No. 216/2024. 8. However, on the submission of the learned Additional Public Prosecutor, it has emerged that 2 witnesses have been examined after 16.02.2024. 5 out of 9 witnesses enlisted in the charge-sheet have already been examined so far. 4 witnesses are yet to be examined. The petitioner was apprehended on 18.04.2023 at about 9 p.m., while checking a Tata Yodha truck bearing registration No. AS15-AC-5442, and 687.26 gms of heroin was recovered from the possession of the petitioner. 9. After scrutinizing the Trial Court Records and considering the facts and circumstances of this case, it is apparent that only 4 witnesses are to be examined by the Trial Court. It cannot be conclusively decided that the case will be procrastinated and the petitioner will be incarcerated for a prolonged period, if he is behind bars till completion of trial. At this juncture, it is not discernable that the possibility of conclusion of trial appears to be remote. The rigours of Section 37 of the NDPS Act acts as an embargo. The trial is progressing at a regular pace. 10. The learned counsel for the petitioner has relied on the decision of Co- ordinate Bench of this Court in Jitul Ali Vs. The Union of India in connection with B.A. No. 4258/2023, wherein vide order dated 26.09.2024, this Court has Page No.# 4/5 observed that:- “21. In the case of Satender Kumar Antil v. Central Bureau of Investigation, AIR 2022 SC 3386, it has been held that:- “Where undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an under-trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.” *** *** *** “ 31. We may also refer to the decision of the Supreme Court of India in the case of Gurwinder Singh v. State of Punjab & Anr., (2024) 0 Supreme(SC) 104, where the offence for which the appellant therein was arrested was under Unlawful Activities (Prevention) Act, 1967. In the said case, the prayer for bail was rejected as it was a serious case and the requirement was to consider the provisions of section 43(D)(5) of the said Act and it was further held that delay in trial pertaining to grave offence cannot be used for granting bail.” *** *** *** “ 33. Thus, in light of the discussions above, the Court is of the considered opinion that though the petitioner has spent about 554 days in custody, but as per the ratio of the case of Satender Kumar Antil (supra), Ajay Kumar Singh (supra), Gurwinder Singh (supra), Mohit Aggarwal (supra), Niranjan Hemchandra Sashittal (supra), Hira Singh (supra), P. Ramachandra Rao (supra), Tarun Kumar (supra), and Baiju Thakur (supra), the petitioner has not become entitled to bail.” 11. In the wake of the foregoing discussions and in the light of the decision of Jitul Ali's Case(Supra), at this juncture, the petition stands rejected. Page No.# 5/5 JUDGE Comparing Assistant